Appendix — Parks v. United States

APPENDIX A

United States Court of Appeals,

Fifth Circuit.

No. 73-2236.

UNITED STATES of America,

Plaintiff-Appellee,

v.

Aston WINTER, Howard Charles Towne, Stanton Davis

and William Michael Parks,

Defendants-Appellants.

March 13, 1975.

Defendants, two American citizens, two Jamaican

nationals and a Bahamian national, were convicted, on

their pleas of nolo contendere, before the United States

District Court for the Southern District of Florida, Charles

B. Fulton, Chief Judge, of conspiracy to import marijuana,

a schedule I controlled substance, into the United States.

The defendants appealed. The Court of Appeals, Brown,

Chief Judge, held that the appeals were limited to attacks

on jurisdictional defects in view of the nolo contendere

pleas; that the Jamaican nationals were charged with

crime over which the district court had jurisdiction even

though they were arrested beyond the territory of the

United States and had not been within the United States

during the pendency of the conspiracy where all the overt

acts alleged in the indictment were related to conduct

within the United States of an American citizen; neither

PO PONY CMR NOLAN TED AERIAL ATTIRE RIN TORRE OE A SHES RY SERENE A RNM NTN ATR TAIT AE OE

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App. 2

the nonresident alien defendants nor the American de-

fendants were entitled to challenge the District Court’s

jurisdiction over their persons on the ground that they

were unlawfully brought within the court’s territorial

jurisdiction following an illegal arrest by the Coast Guard;

and that none of the defendants were misled into believing

they would be permitted to appeal nonjurisdictional aspects

of the denial of their motion to suppress if they entered

no contest pleas.

Affirmed.

1. Criminal Law —1026

Where defendants had entered voluntary pleas of nolo

contendere, on appeal they were limited to attack on jur-

isdictional defects.

2. Criminal Law —275

Record established that there was ample underlying

factual basis to support trial court’s acceptance of pleas of

nolo contendere to indictment charging defendants with

conspiring to import 1,130 pounds of marijuana into the

United States. Fed.Rules Crim.Proc. rule 11, 18 U.S.C.A.;

Comprehensive Drug Abuse Prevention and Control Act of

1970, §§ 1002(a), 1013, 21 U.S.C.A. §§ 952(a), 963.

3. Criminal Law —97

The district court has jurisdiction over a conspiracy

and all those proved to be conspirators if the conspiracy

is designed to have criminal effects within the United

States and if there is sufficient proof that at least one of

PPS ae TT

App. 3

the couspirators committed an overt act in furtherance of

the conspiracy within the territorial juurisdiction of the

district court.

4. Conspiracy —24, 27

Essence of crime of conspiracy is agreement and not

commission of crime which is object of the conspiracy and

it is immaterial to commission of crime of conspiracy

whether object of conspiracy is achieved; there must be an

overt act done in pursuance of the conspiracy, but such

act need not constitute the very crime which is object of the

conspiracy.

5. Conspiracy —27

An overt act, seemingly innocent in itself yet in fur-

therance of the conspiracy, is sufficeint to support convic-

tion of conspiracy. 18 U.S.C.A. § 371.

6. Criminal Law —98

Where one conspirator committed overt act within

the territorial jurisdiction of the United States in further-

ance of conspiracy to import marijuana into the United

States, the district court had jurisdiction over two Jamai-

can nationals who participated in the conspiracy by acting

as crew members even though the two Jamaicans were

arrested on the high seas and they had not entered the

United States prior to the arrest. Fed.Rules Crim.Proc.

rule 11, 18 U.S.C.A.; Comprehensive Drug Abuse Preven-

tion and Control Act of 1970, § 1018, 21 U.S.C.A. § 963.

a eee ATRL TENT MONI PAL OTRO LT LEM LOD OL IG LLLP LY REEL TIEN IR YIN MD RINE TON NIT PED ERNE

App. 4

7. Criminal Law —97

Where another conspirator had committed overt acts

within the territorial jurisdiction of United States in

furtherance of conspiracy to import marijuana, district

court had jurisdiction of offense charged against an Amer-

ican citizen who participated in the conspiracy although

he was not alleged to have committed an overt act in fur-

therance of the conspiracy within the United States. Fed.

Rules Crim.Proc. rule 11, 18 U.S.C.A.; Comprehensive

Abuse Prevention and Control Act of 1970, § 1013, 21

U.S.C.A. § 963.

8. Criminal Law —99

A defendant in a federal criminal trial, whether citi-

zen or alien, whether arrested within or beyond the terri-

tory of the United States may not successfully challenge

district court’s jurisdiction over his person on the ground

that his presence before the court was unlawfully secured.

9. Criminal Law —99

Mere errors or the exertion of action by government

agents beyond the strict territorial limits does not make

the government conduct so outrageous as to deprive the

court of jurisdiction of the defendant’s person.

10. Criminal Law —98

District court had jurisdiction over person of Ameri-

can citizen arrested by coast guard officers at a point on

the high seas approximately 35 miles from the coast of

Florida and 11.9 miles from the nearest island of the

Die N iP TAL GET DOT EY SEE TRE OOS OR EI PP a MNT ea i EES PE ETRE ODS t4

App. 5

Bahamas. Comprehensive Drug Abuse Prevention and

Control Act of 1970, S$ 1002(a), 1013, 21 U.S.C.A.

S$ 9521a), 963.

11. Criminal Law —98

District court had jurisdiction over persons of Ja-

maican nationals who were arrested by coast guard officers

on the high seas approximately 35 miles from the coast

of Florida and 11.9 miles from the nearest island of the

Bahamas and brought into the jurisdiction of the United

States where no treaty was violated and the vessel which

was boarded was an American vessel.

12. Aliens—3

In certain contexts, resident aliens are entitled to the

same rights as American citizens.

13. Criminal Law —1026

While a defendant who enters a guilty or nolo con-

tendere plea may preserve a challenge to the court’s jur-

isdiction on appeal, a defendant who has pleaded under

such a court-approved reservation may not renew a motion

to suppress on appeal simply by invoking the magic words

“jurisdictional-defect” and phrasing his argument as a

challenge to the arresting officer’s jurisdiction to search

or arrest.

14. Criminal Law —99

Where defendant, who was arrested when he was dis-

covered hiding aboard seized vessel after it had been seized

FE EE AD RENE REREAD BOS

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App. 6

35 miles off the coast of Florida and 11.9 miles from the

nearest island in the Bahamas and brought into Miami,

had already been identified by the owner of the vessel as

a conspirator and he could be connected with the marijuana

smuggling enterprise regardless of the contraband found

aboard another vessel seized at the same time, the district

court was not deprived of jurisdiction over the defendant

on theory that his arrest was the “fruit of the poisonous

tree” of an alleged illegal boarding in Bahamian waters.

15. Criminal Law —275

Record established that none of defendants who en-

tered pleas of nolo contendere to indictment charging con-

spiracy to import marijuana into the United States were

misled into believing that they would be permitted to

appeal nonjurisdictional aspects of the district court’s

denial of motion to suppress. Comprehensive Drug Abuse

Prevention and Control Act of 1970, §§ 1002(a), 1013, 21

U.S.C.A. §§ 952 (a), 963.

Appeals from the United States District Court for the

Southern District of Florida.

Before BROWN, Chief Judge, and GODBOLD and

SIMPSON, Circuit Judges.

JOHN R. BROWN, Chief Judge:

On March 8, 1973, at a point on the high seas approxi-

mately 35 miles from the coast of Florida and 11.9 miles

from the nearest island of the Bahamas,' United States

Coast Guard officers boarded the American owned M/V

Big L which at the time was being towed by the American

'The distances were a matter of stipulation in the District Court.

BE ORR EIT SE EME SEN APG IES OPT MERRIE ROUEN OPE SELEY WES SECRETS

App. 7

owned M/V Adventurer III and promptly located over a

half a ton of marijuana which they knew to be aboard. The

four members of the MV Big L’s crew, appellants Winter

and Davis (both Jamaican nationals), appellant Towne

(an American citizen) and co-defendant Saunders’? (a

Bahamian national) were immediately arrested and

brought into the Southern District of Florida. Appellant

Parks (an American citizen) was arrested the following

morning when he was found concealed aboard M/V Ad-

venturer III in Miami.

Appellants entered pleas of nolo contendere to an in-

dictment pursuant to 21 U.S.C.A. §§ 952(a)' and 963

charging them with conspiring to import 1,130 pounds of

marijuana, a schedule I controlled substance, into the

United States.°

[1] Appellants are before us challenging alleged

defects in the trial court’s jurisdiction over their persons

*Saunders entered a plea of nolo contendere, received @ sentence of

18 months imprisonment and chose not to appeal.

3§ 952.

(a) It shall be unlawful to import into the customs territory of

the United States from any place outside thereof (but within the

United States), or to import into the United States from any place

outside thereof, any controlled substance in schedule I or II of sub-

chapter I of this chapter, or any narcotic drug in schedule III, IV.

or V of subchapter I of this chapter.

*§ 963. Attempt and conspiracy

Any person who attempts or conspires to commit any offense

defined in this subchapter is punishable by imprisonment or fine or

both which may not exceed the maximum punishment prescribed for

the offense, the commission of which was the object of the attempt or

conspiracy.

*A. J. Moreno, who allegedly helped put the load together in

Jamaica, was also indicted but has never been arrested.

RR RSet ASE LP PRT IE ESSER OT PE OR EGO L LI OLE LDPE NE BE GICLEE

App. 8

and over the crime.° Through separate briefs and oral

argument, appellants raise a variety of theories each in-

corporated by reference by the rest.’

Essentially, however, the following challenges of sig-

nificance are presented.

(1) Were the Jamaican nationals, Winter and Davis,

charged with a crime over which the District Court had

jurisdiction assuming that they were arrested beyond the

territory of the United States, were not alleged to have

been within the United States during the pendency of the

conspiracy and all the overt acts alleged in the indictment

related solely to the conduct within the United States of

appellant Parks, an American citizen?

(2) May either the Jamaican appellants or the

Americans challenge the District Court’s jurisdiction over

i the persons on the ground that they were unlawfully

brought within the Court’s territorial jurisdiction follow-

ing an illegal arrest by the Coast Guard?

(3) Were any of the appellants, most particularly

4 Parks, misled into believing that they would be permitted

to appeal non-jurisdictional aspects of the District Court’s

denial of the motion to suppress in contradiction to our

decisions in United States v. Sepe, 5 Cir., 1973, 486 F.2d

‘These appeals are necessarily limited to attacks on jurisdictional

defects in light of our recent decisions in United States v. Sepe, 5

Cir.. 1973, 486 F.2d 1044 (en banc) affirming 471 F.2d 781; and

United States v. Mizell, 5 Cir.. 1973, 488 F.2d 97. See note 8, infra.

?While each appellant incorporates all the helpful theories of his

co-appellants as a matter of course, differences in factual circum-

stances such as nationality or situs of arrest occasionally call for

separate treatment which we indicate.

PONT LETT ANNETTE I TANS aE R AR SNELL SV STL RLS EMIT By LEE NON RN SMR LE IOI EE TRS SUN PE DOME

App. 9

1044 (en banc) affirming 474 F.2d 784; United States v.

Mizell, 5 Cir., 1973, 488 F.2d 97?

After indictment, appellants entered pleas of not guilty

and moved to dismiss the indictment for a lack of jurisdic-

tion over their persons and the crime and to suppress the

contraband seized aboard M/V Big L. The facts we set out

were adduced by stipulation and testimony at the hearings

before the District Court on the motions to dismiss for

want of jurisdiction and to suppress and upon the entry

of the pleas.

Smuggling By The High Seas

On January 3, 1973 an individual named “Dave” and

Michael Force (aka Michael Parks) approached Roy War-

ren in Miami and offered to pay him $15,000.00, $2,500.00

in advance, for the use of his boat M/V Adventurer III to

import a load of marijuana into the United States from

Jamaica. Shortly thereafter, Warren contacted the Bureau

of Narcotics and Dangerous Drugs (BNDD) and informed

them of the offer. The BNDD advised Warren to co-

‘In Sepe we held that after entering a plea of nolo contendere or a

plea of guilty, a defendant may only appeal jurisdictional defects in

the proceeding below, such as the failure of the indictment to state a

crime, the unconstitutionality of the statute underlying the indictment,

the expiration of the statute of limitations or necessarily the District

Court’s lack of jurisdiction over the subject matter or the persons of

the defendants. Furthermore, we disapproved the practice whereby a

District Court accepted a plea sanctioning an agreement between

prosecution and defense under which the defendant would be allowed

to raise non-jurisdictional defects on appeal. In Mizell we vacated and

remanded with orders to allow the defendant to determine whether to

replead, in view of the presence of the type of agreement disapproved ~

in Sepe. See also United States v. Mendoza, 5 Cir., 1974, 491 F.2d

534; Haynes v. United States, 5 Cir., 1967, 372 F.2d 651 reversed on

other grounds, 1968. 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923;

United States v. Cash, 5 Cir., 1973, 486 F.2d 295.

SARE ER I NE GSE, OF DELP Re ORRIN ATI Get AE IRL ERE RMR LINE M9 DE RI NONI RTRS Ley COTA RE SS, PIED RAE

App. 10

operate, assisted him in making necessary alterations’ to

his boat and provided him with certain navigational equip-

ment required by the enterprise. Not content with assisting

in the role of one who victuals and supplies, the Govern-

ment engaged in manning, cf. 46 U.S.C.A. § 186, by supply-

ing two BNDD undercover agents to accompany Warren

on the voyage as members of the crew.

The Scene Shifts To Land

Once in Jamaica, Warren met Parks and accompanied

him into the hills where he was introduced to a number of

Jamaicans, including an individual known as “Louis”

(aka Stanton Davis), who was allegedly involved in “put-

ting the load together.” During the course of the enter-

prise, Warren kept in close contact with supervisory

officials of the BNDD. Warren relayed the message that

the boat was loaded and ready to go."°

Back To The High Seas

On Monday, March 5, BNDD agent Cooke received

another call from Warren from Grand Cayman in the

Bahamas, informing him that they were proceeding with |

one and one-half to two tons of marijuana on board as well

as with “Louis” and another Jamaican who were returning

with them to the United States.'' Warren further in-

°The alterations were financed by the advance payment. The

BNDD provided Warren with $500.00 to cover the expenses of the

trip to Jamaica.

‘At the hearing on appellant’s motion to suppress, BNDD agent

Cooke so testified.

‘Apparently the Jamaicans anticipated entering the United States

covertly to visit relatives. Warren indicated that Parks might possibly

owe the Jamaicans some money as a result of the transactions.

RSTn EEO ENOL SLT IRI eT IEEE LALLY LTE EG IERIE REE

BY 320 Eyre ar

App. 11

formed Cooke that after refueling on Wednesday or Thurs-

day, M/V Adventurer III would rendezvous at dusk with

a 38 foot fishing vessel from Ft. Lauderdale called M/V

Big L in the vicinity of Riding Rocks’? and that the

marijuana would be transfered to that vessel."

Seagoing Surveillance And Boarding

From time to time on the 7th and the 8th, the BNDD

maintained aerial surveillance of both vessels while they

were tracked by radar from C/G cutter Dauntless. Be-

tween 7:30 and 9:30 on the 8th, Warren informed the

BNDD agents aboard C/G Dauntless by radio that the

contraband and the two Jamaicans had been transferred

to M/V Big L. Approximately 30 minutes later, Warren

radioed that M/V Big L had developed engine trouble and

had been taken under tow by M/V Adventurer III.

Shortly thereafter the C/G Dauntless accosted the

vessels. By stipulation, the position of the vessels at the

time of the encounter was 35 miles from the closest point

on the Florida coast and 11.9 miles from North Cat Cay,

the closest point in the Bahamas."*

Upon boarding M/V Big L, the Coast Guard officers

and BNDD agents ordered the four individuals aboard to

move toward the afterend of the boat. In the process of

\2Riding Rocks is at approximately 25° 15’ N; 79° 9° W, approxi-

mately 24 miles S.E. of the point of boarding (note 1, supra).

'3Reminiscent of prohibition days. see United States v. Ingham. 5

Cir., 1974, 502 F.2d 1287, 1288, M/V Adventurer IIT was a hovering

vessel, see 19 U.S.C.A. § 1401(n), note 23, infra.

4]t was fixed at 25° 29° 3” N., 79° 29 2” W.. based on a

sighting off control lights in Miami and Bimini harbors made from

C/G Dauntless at the time and recorded in the vessel's log.

HIRE LEY RN NEE GAN EST IP HRSA MIDST EYE PRS IOP AENEAN MPI

App. 12

checking the hold for further crew members, a BNDD

agent, to no one’s great surprise, located the contraband.

The Conspiracy Terminates

The four individuals found aboard M/V Big L were

immediately placed under arrest,'’ Parks was arrested the

following morning aboard M/V Adventurer III, and all

were thereafter indicted in the Southern District of Flor-

ida. The enterprise was ended.

Plea Bargaining

Defendants’ motions to dismiss and suppress were

denied. The government disclosed that it intended to use

three confidential informers and agreed to make them

available to defense counsel for questioning. Apparently

after having interviewed at least one of these informers,

defense counsel entered into plea negotiations with the

government.

[2] Ata hearing before the Court on April 23, 1973

all defendants agreed to enter pleas of nolo contendere. In

exchange the government promised to make specific sen-

tencing recommendations to the Court. Before accepting

the pleas, the District Court carefully instructed the de-

fendants that while a plea of nolo contendere would con-

stitute a waiver of all non-jurisdictional defects, challenges

to the Court’s jurisdiction could still be pursued on appeal.'*

'SSee text accompanying note 2, supra.

'6The record shows that the District Court scrupulously followed

the requirements of F.R.Crim.P. 11 in accepting the pleas. The

extensive hearings on the motions to dismiss and suppress, coupled

with the stipulations and hearings upon entering the pleas, provided

the District Court with a more than ample underlying factual basis

to support the pleas.

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App. 13

After accepting the pleas, the Court sentenced Parks to

three years, Davis to 18 months, Towne to 9 months,

Winter to 6 months, and Saunders to 18 months.”

Jurisdiction Over The Crime

The Jamaican appellants, Winter and Davis, were

arrested on the high seas 35 miles from the coast of Florida

aboard a small vessel carrying over a half ton of mari-

juana. We will assume, as contended by these appellants,

that the boarding and arrests occurred beyond the terri-

torial boundaries of the United States.'' There has been

no contention that either the contraband or the alien de-

fendants were present within the territorial limits of the

United States prior to the involuntary termination of the

conspiracy. All three overt acts alleged in the indictment

related solely to the conduct of American appellant Parks

within the state of Florida which took place prior to the

events on the high seas.’’

Under these circumstances did the indictment and

stipulated facts state a crime against the United States

over which the District Court had jurisdiction in regard

to Jamaican nationals Winter and Davis? A survey of the

precedent compels us to answer affirmatively.

'7The government had recommended two years for Parks and

Davis. 18 months for Saunders, 18 months for Winter, and 9 months

for Towne. Again with scrupulous regard for the rights of each accused,

the District Court. prior to accepting the pleas, advised the defendants

that it was under no obligation to accept the government’s recom-

mendations but that it would allow any defendant who received a

sentence in excess of that recommended to withdraw his plea if he

so desired.

'8SThis is not to assume that they occurred beyond the Coast

Guard's jurisdiction to arrest.

1°See note 22. infra.

SR et RINSE A RIV LEP EOI, DOME A PLETE LS BRA AI 8 PI LEP BME PIE UES SET ELT PE NN POSTE

App. 14

In Strassheim v. Daily, 1910, 221 U.S. 280, 31 S.Ct.

558, 55 L.Ed. 735, the Court was faced with the question

of whether Daily of Chicago, Illinois was properly ex-

traditable to Michigan as a fugitive from justice, having

been indicted in Michigan for bribery and obtaining money

from the state on false pretenses. Acting in concert with

Michigan state officials, Daily was alleged to have sold

old machinery to the state, while willfully misrepresenting

it was new. Assuming at the outset that Daily had not

personally committed any pertinent act within the territory

of Michigan, Justice Holmes, writing for a unanimous

court, observed that:

If a jury should believe the evidence, and find that

Daily did the acts that led Armstrong to betray his

trust, deceived the board of control, and induced by

fraud the payment by the state, the usage of the

civilized world would warrant Michigan in punish-

ing him, although he never had set foot in the state

until after the fraud was complete. Acts done out-

side a jurisdiction, but intended to produce and pro-

ducing detrimental effects within it, justify a state

in punishing the cause of the harm as if he had been

present at the effect, if the state should succeed in

getting him within its power.

221 U.S. at 284-85, 31 S.Ct. at 560, 55 L.Ec. at 738.

In Ford v. United States, 1927, 273 U.S. 593, 47

S.Ct. 531, 71 L.Ed. 793, the principle was applied to facts

more closely resembling those we confront. The defendants

were indicted and convicted for conspiring to import liquor

into the United States in violation of the prohibition laws.

Appellants had been arrested with the contraband aboard

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App. 15

a British vessel on the high seas. The jurisdiction of the

District Court was challenged on the ground that some

of the co-conspirators were never present within -he

territory of the United States during the pendency of the

conspiracy. The Court dismissed this argument noting

that:

The conspiracy was continuously in operation between

the defendants in the United States and those on the

high seas adjacent thereto, and of the four overt acts

committed in pursuance thereof, three were completed

and took effect within the United States, and the

fourth failed of its effect only by reason of the in-

tervention of federal officers. In other words, the

conspiring was directed to violation of the United

States law within the United States, by men within

and without it, and everything done was at the pro-

curation and by the agency of each for the other in

pursuance of the conspiracy and the intended illegal

importation. In such a case all are guilty of the offense

of conspiring to violate the United States law whether

they are in or out of the Country.

273 U.S. at 620, 47 S.Ct. at 540, 71 L.Ed. at 805.

This Circuit has applied the same principle recently on

several occasions. In Marin v. United States, 5 Cir., 1965,

352 F.2d 174 the Court relied on Ford in affirming a

conviction under 21 U.S.C.A. § 174 for conspiring to

smuggle heroin into the United States despite the fact that

the defendant had not set foot within the United States

during the pendency of the conspiracy, but a co-conspirator

had committed overt acts within the United States.

i — Ori eae Ge ee Tee ee ae Cd a a el ill a a Se tae a ce TA, deed. Meal

App. 16

In Rivard v. United States, 5 Cir., 1967, 375 F.2d

882, cert. denied sub nom. Groleau v. United States, 389

U.S. 884, 88 S.Ct. 151, 19 L.Ed.2d 181, four Canadians

had been convicted of conspiring 10 smuggle heroin into

the United States although onl: one had entered the

country during the pendency of tiie conspiracy. Recogniz-

ing that the United States subscribes to the objective view

of the territorial principle of jurisdiction—that is “juris-

diction extends over all acts which take effect within the

sovereign even though the author is elsewhere,” 375 F.2d

at 886°’ — we sustained the lower court’s jurisdiction over

the conspiracy count pointing out that “[t]here is thus no

doubt that the object of the conspiracy was to violate the

narcotics laws of the United States; that the conspiracy

was carried on partly in and partly out of this country;

and that overt acts were committed within the United

States by co-conspirators.” 375 F.2d at 886.?' Further-

more, since heroin had actually been smuggled into the

United States by one of the co-defendants, the Court af-

firmed the conviction of another co-defendant as a prin-

cipal on a substantive count of smuggling although the

latter had not entered the United States prior to the

completion of the crime.

And even more iecently we upheld jurisdiction over

acts of possession, forgery and passing of United States

Social Security checks which took vlace wholly within

2°See Restatement of Foreign Relations Law of the United States

2d (1965) § 10 (Basis of Jurisdiction), § 17 (Jurisdiction to Prescribe

With Respect to Conduct, Thing, Status, or Other Interests Within

The Territory), § 18 (Jurisdiction to Prescribe With Respect to Effect

Within Territory), § 38 (Territorial Interpretation of United States

Law).

21See also Yenkichi Ito v. United States, 9 Cir., 1933, 64 F.2d 73;

United States v. Canta-La Luz, 9 Cir., 1971, 443 F.2d 413.

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App. 17

Mexico since the actions were “intended to produce and

producing detrimental effects within” the United States.

United States v. Fernandez, 5 Cir., 1974, 496 F.2d 1294.

[3] The case law clearly establishes that the District

Court has jurisdiction over a conspiracy and all those

proved to be conspirators if the conspiracy is designed to

have criminal effects within the United States and if

there is sufficient proof that at least one of the con-

spirators committed an overt act in furtherance of the

conspiracy within the territorial jurisdiction of the District

Court.

The indictment in the instant case alleged that co-

conspirator Parks committed three seemingly innocuous

overt actes in furtherance of the conspiracy within the

territorial jurisdiction of the United States.”

2QVERT ACTS

1. On or about January 21, 1973 William Michael Parks boarded

the vessel) ADVENTURER III at Watson’s Island, Miami, Florida.

2. On or about January 28, 1973 William Michael Parks arrived

at the pier behind the vessel) ADVENTURER III on Watson's Island,

Miami, Florida.

3. On or about March 1, 1973 William Michael Parks entered

the Royal Castle at Biscayne Boulevard and i0th Street. Miami,

Florida.

All in violation of Title 21, United States Code, Section 963.

Since the case never went to trial, the government did not have

occasion to prove any of the three alleged overt acts of Parks. We

do not understand appellants to contest the government’s ability to

prove these acts. But in any event there was aa adequate showing

of jurisdictional facts to satisfy F.R.Crim.P. 11.

During the hearing on the motion to dismiss for lack of jurisdic-

tion, BNDD agent Cooke testified that Warren had contacted the

BNDD and informed it that Parks had approached him in Miami and

offered to rent his boat to carry marijuana from Jamaica to the United

States. The parties further entered a stipulation to the same effect.

This in itself is of course evidence of an overt act in furtherance of

the conspiracy within the United States.

ye WEN LLL OE SENET EN LRM AREA Sih PENIS POM SER WENA I Tal AMMA AAMT SIEGE PPR IS

App. 18

Admittedly in Ford, Marion, and Rivard the unlawful

importation of contraband into the United States actually

occurred and was thus among the overte acts established.

Here the conspiracy was cut short by the long arm of the

law before the actual importation could take place. This

is a distinction without significance, however.

[4] As we recently observed in United States v.

Carlton, 5 Cir., 1973, 475 F.2d 104, 106:

The essence of the crime of conspiracy is the agree-

ment and not the commission of the crime which is

the object of the conspiracy. United States v. Rabino-

wich, 238 U.S. 78, 35 S.Ct. 682, 59 L.Ed. 1211. It is

immaterial to the commission of the crime of con-

spiracy whether the object of the conspiracy is

achieved. Rabinowich, supra'; Castro v. United States,

supra [296 F.2d 540 (5th Cir.)]; and Williams v.

United States, 179 F.2d 644 (5th Cir.). There must

of course be an overt act done in pursuance of the

conspiracy, but such act need not constitute the very

crime which is the object of the conspiracy, Rabino-

wich, supra.”?

[5] An overt act, seemingly innocent in itself yet in

3 furtherance of the conspiracy, is sufficient under the law

‘ of conspiracy. We see no reason why it should be any

25See United States v. Morello, 2d Cir., 1957, 250 F.2d 631, 635

where the Court explicitly recognized under 21 U.S.C.A. §§ 173 and

174. of the old Narcotic Drugs Import and Export Act and 18 U.S.C.A.

§ 371 (the general federal conspiracy provision) that “the substantive

crime of unlawful importation was not essential to prove the crime of

: conspiracy as charged.”

aA a ai al oa IIL LN fA EN Oo ONE TG BO MR RON NE Lee A fa

App. 19

different for jurisdictional purpose,* to the extent that

proof of an overt act is required.”

(6, 7] Since appellants were clearly charged with

conspiring to engage in conduct designed to have criminal

effects within the United States and since an overt act

in furtherance of the design was properly alleged in the

indictment,’ a crime was stated over which the United

244 different question might be presented had these foreign na-

tionals been charged with the substantive offense of unlawful im-

portation or attempt to import. In that event, the Court, in the

absence of a showing of agency, aider or abettor, etc., would likely

have to determine whether Congress intended the statute in issue to

have an extraterritorial effect. See United States v. Bowman, 1922,

260 U.S. 94, 43 S.Ct. 39, 67 L.Ed. 149; Yenkichi Ito v. United States,

1933, 9 Cir., 64 F.2d 73; United States v. Vicars, 5 Cir., 1972, 467

F.2d 452, 456. Cf. Rocha v. United States, 9 Cir., 1961, 288 F.2d 545.

25The indictment in the instant case was brought under 21 U.S.C.

§ 963 the “built-in” conspiracy provision of the Controlled Substance

Import and Export Act, which, unlike 18 U.S.C.A. $371, does not

explicitly require proof of an overt act.

While the Ninth Circuit has held that proof of an overt act was

unnecessary to prove conspiracy to smuggle under 21 U.S.C.A.

§176(a) (§2 of the old Narcotic Drugs Import and Export Act),

Ewing v. United States, 9 Cir., 1967, 386 F.2d 10. we need not

resolve the question of whether proof of an overt act is required

under § 963 either as a matter of criminal law or for jurisdictional

purposes since the indictment in the instant case contains such an

allegation.

26In addition to reliance on the overt acts of Parks alleged in the

indictment, the government asserts that it could readily prove overt

acts in furtherance of the conspiracy within United States territory

by each defendant if necessary. This arguments proceeds from the

fact that all the defendants but Parks were seized along with the

contraband aboard M/V Big L, and American owned and registered

vessel, coupled with the often employed fiction that for purposes of

criminal jurisdiction, a vessel is deemed to be part of the territory of

the sovereign whose flag it flies. See Lauritzen v. Larsen, 1953, 345

U.S. 571, 585, 73 S.Ct. 921, 97 L.Ed. 1254; United States v. Flores,

1933, 289 U.S. 137, 155-59. 53 S.Ct. 580, 77 L.Ed. 1086; 18 U.S.C.A.

§ 7. Since we find the overt acts of Parks sufficient, we need not

reach this question.

Miitaar pam ae cunye (ASSOLE SAG STOREY RRA EAE PCA TIRE NE PIER IE PERE RC PE PANES PI NINE RNG EN

App. 20

States and the District Court had jurisdiction.”’

Jurisdiction Over The Person

Appellants challenged the District Court’s jurisdiction

over their persons, contending that they were illegally

arrested and unlawfully brought before the Court. Ap-

pellants contest the legality of the arrests on the following

theories.”*

(1) By arresting appellants 35 miles from the Florida

coast, the Coast Guard exceeded its jurisdiction to arrest

not alleged to have committed an overt act in furtherance of the

conspiracy within the United States. Of course Parks is in no position

to join in these challenges since he is an American citizen alleged

to have committed three overt acts in furtherance of the conspiracy

within the United States.

28In restating appellants’ theories, we express no opinion as to

their merit nor as to the validity of any of the underlying inferences

or assumptions (particularly those that attempt to define the juris-

dictional or territorial limitations of the United States or any other

sovereign state).

2914 U.S.C.A. § 2 declares that:

The Coast Guard shall enforce or assist in the enforcement of all

applicable Federal laws upon the high seas and waters subject to

the jurisdiction of the United States.

The Coast Guard’s enforcement authority is more specifically

prescribed by 14 U.S.C.A. § 89(a) which provides:

(a) The Coast Guard may make inquiries, examinations. inspec-

tions, searches, seizures, and arrests upon the high seas and waters

over which the United States has jurisdiction, for the prevention,

detection, and suppression of violations of laws of the United

States. For such purposes, commissioned, warrant, and petty of-

ficers may at any time go on board of any vessel subject to the

jurisdiction, or to the operation of any law, of the United States,

address inquiries to those on board, examine the ship’s docu-

ments and papers, and examine, inspect, and search the vessel

ERR MI wesc

Vee ete ‘ ice P ro Sayan One Oe: LPP NS PE Ee RED Pa ee

—

App. 21

extends to the high seas within 12 miles of the United

States coast.’°

(2) By arresting appellants within 11.9 miles of the

coast of the Bahamas, and hence allegedly within the ex-

and use all necessary force to compel compliance. When from

such inquiries, examination, inspection, or search it appears that

a breach of the laws of the United States rendering a person

liable to arrest is being, or has been committed, by any person,

such person shall be arrested or, if escaping to shore, shall be

immediately pursued and arrested on shore, or other lawful and

appropriate action shall be taken; or, if it shall appear that a

breach of the laws of the United States has been committed so as

to render such vessel, or the merchandise, or any part thereof, on

board of, or brought into the United States by, such vessel, liable

to forfeiture, or so as to render such vessel liable to a fine or

penalty and if necessary to secure such fine or penalty, such

vessel or such merchandise, or both, shall be seized. (Emphasis

added).

°There is little, if any current authority, construing the jurisdic-

tional prerequisites of the statute. Rather, most of the case law regard-

ing enforcement authority dates from the days of prohibition and

arose either pursuant to the jurisdictional provisions of the former

Customs statutes authorizing boarding, search, seizure and arrest

aboard any vessel within four marine leagues of the United States

coast or pursuant to bilateral prohibition enforcement treaties which

allow the Coast Guard (or predecessor) to board, search and arrest on

a vessel of the party state within an hour’s sailing distance of the coast

(measured by the vessel’s sailing speed). See. e. g.. Ford v. United

States (The Quadra), 1927, 273 U.S. 593, 47 S.Ct. 531. 71 L.Ed.

793; United States v. Lee. 1927, 274 U.S. 559, 47 S.Ct. 716, 71 L.Ed.

1202: Maul v. United States (The Underwriter), 1927, 274 U.S. 501,

47 S.Ct. 735, 71 L.Ed. 1171; Cook v. United States (The Mazel Tov).

1933, 288 U.S. 102. 53 S.Ct. 305, 77 L.Ed. 641; Gillam v. United

States (The Vinces), 4 Cir., 1928, 27 F.2d 296: Olson v. United States

(The Atlantic), 2 Cir.. 1933, 68 F.2d 8: The Rosalie M.. S.D.Tex..

1925, 4 F.2d 815.

Appellants urge that the term “high seas and waters over which

the United States has jurisdiction” limits the Coast Guard’s enforce-

ment authority to a maximum of 12 miles from the United States

coast. Appellants reach this conclusion largely in reliance on Article 21

of The Convention on the Territorial Sea and Contiguous Zone, 1958,

(Footnote continued on next page)

PORTE spencers MED ON OR ERENT EISEN GTS PSE ATI LOTT LIA EID MY IO LIE CL OY

App. 22

clusive territory of another sovereign foreign state, the

Coast Guard violated its jurisdiction as prescribed by

statute, treaty and customary international law.*'

(Footnote continued from previous page)

15 U.S.T. 1606, T.I.A.S. No. 5639, 516 U.N.T.S. 205, to which the

United States is a party and which provides that a coastal state may

exercise control over an area contiguous to its territorial sea but not

extending beyond 12 miles from its coast for the purpose of preventing

and punishing infringements of its customs, fiscal immigration and

sanitary regulations.

To a lesser extent, appellants rely on Article 6 of the treaty that

allows a state to define the limits of its own territorial sea (presumably

within the 12 mile maximum provided for the contiguous zone) in

which it may exercise exclusive control. The United States has long

claimed a three mile territorial sea. See Statement of the Law of

Foreign Relations of the United States 2d (1969) § 15, Reporters

Note 1. See also United States v. Louisiana, 1959, 363 U.S. 1, 80 S.Ct.

961, 4 L.Ed.2d 1025.

The government replies that the Coast Guard may board and

arrest on an American vessel at any point on the high seas or even

within the foreign territorial waters in its efforts to enforce laws

enacted pursuant to the “special maritime and territorial jurisdiction

of the United States” which 18 U.S.C.A. §7 defines as:

(1) The high seas, any other waters within the admiralty and

maritime jurisdiction of the United States and out of the jurisdic-

tion of any particular State, and any vessel belonging in whole or

in part to the United States or any citizen thereof, or to any

corporation created by or under the laws of the United States, or

of any State, Territory, District, or possession thereof, when such

vessel is within the admiralty and maritime jurisdiction of the

United States and out of the jurisdiction of any particular State.

‘tAppellants base their claim that the vessel was in Bahamian

waters on the fact that the United Kingdom (of which the Bahamas

were a part at the time of the arrest) was a party to the Convention

on the Territorial Sea and Contiguous Zone, note 30, supra, and thus

under Article 21, the Bahamas were entitled to exercise limited control

over the Contiguous Zone extending to a distance of 12 miles from

its coast.

The government counters that the Coast Guard was not precluded

from arresting at the point in controversy since like the United States,

the United Kingdom claims only a three mile territorial sea subject

to its exclusive control. See Territorial Waters Jurisdiction Act. 1878,

41 & 42 Victoria, C. 73.

ROE EOP RSF TONE NIE GRIDER STAI EB SS MEER EME APP SERIE RINE IT 8. BN

RS carne 20

App. 23

(3) By arresting appellants by self-help within the

territory of the Bahamas, the Coast Guard violated the

United States treaty of extradition with the United

Kingdom.

(4) Acting in its capacity as an arm” of either the

BNDD or the Customs Authority,” the Coast Guard

violated the regulations governing those agencies by ex-

ceeding their jurisdiction to arrest.

These challenges to the Coast Guard’s jurisdiction to

arrest raise interesting and perhaps difficult questions of

law, largely unresolved by federal precedent.

3214. U.S.C.A. § 89(b) provides:

(b) The officers of the Coast Guard insofar as they are engaged,

pursuant to the authority contained in this section, in enforcing

any law of the United States shall:

(1) be deemed to be acting as agents of the particular

executive department or independent establishment charged with

the administration of the particular law; and

(2) be subject to all the rules and regulations promulgated by

such department or independent establishment with respect to

the enforcement of that law.

330fficers of the Customs are granted special authority to seize,

search and board vessels. 19 U.S.C.A. § 1581 provides:

(a) Any officer of the customs may at any time go on board

of any vessel or vehicle at any place in the United States or within

the customs waters or, as he may be authorized, within a customs-

enforcement area established under sections 1701 and 1703-1711

of this title, or at any other authorized place, without as well as

within his district, and examine the manifest and other documents

and papers and examine, inspect, and search the vessel or vehicle

and every part thereof and any person, trunk, package, or cargo

on board, and to this end may hail and stop such vessel or vehicle,

and use all necessary force to compel compliance.

* * *

(e) If upon the examination of any vessel or vehicle it shall

appear that a breach of the laws of the United States is being or

has been committed so as to render such vessel or vehicle, or the

(Footnote continued on next page)

oy ey PPE AB NEME RIAL YIM ATH LER RIM IIE HER AAS DMA LID: MERI IIE NAPE LY ATTA” PITT LENA ALY BIRET ,

App. 24

[8] We do not find it necessary to decide these ques-

tions at this time, however, since we are convinced that

under well established case law of the Supreme Court and

this Circuit, a defendant in a federal criminal trial

whether citizen or alien, whether arrested within or be-

yond the territory of the United States may Relies

fully challenge the District Court’s jurisdiction over his

person on the grounds that his presence before the Court

was unlawfully secured.

United States by, such vessel or vehicle, lial ic to forfeiture or to

secure any fine or penalty. the same shall be ed and any person

who has engaged in such breach shall be 01) ted

(f) It shall be the duty of the severe! off +. of the customs to

seize and secure any vessel, vehicle, or m\: ‘sandise which shall

become liable to seizure. and to arrest os: person who shall

become liable to arrest, by virtue of any law respecting the

revenue, as well without as within their respective districts, and

to use all necessary force to seize or arrest the same.

(g) Any vessel, within or without the customs waters, from

which any merchandise is being. or has been, unlawfully intro-

duced into the United States by means of any boat belonging to.

or owned, controlled. or managed in common with, said vessel,

shall be deemed to be employed within the United States and, as

such, subject to the provisions of this section.

(h) The provisions of this section shall not be construed to

authorize or require any officer of the United States to enforce —

any law of the United States upon the high seas upon a foreign

vessel in contravention of any treaty with a foreign government

enabling or permitting the authorities of the United States to

board. examine. search, seize, or otherwise to enforce upon said

vessel upon the high seas the laws of the United States except as

such authorities are or may otherwise be enable or permitted

under special arrangement with such foreign government.

19 U.S.C.A. § 1401:

(1) The term “officer of the customs” means any officer of the

Customs Service or any commissioned, warrant, or petty officer

of the Coast Guard, or agent or other person authorized by law

or by the Secretary of the Treasury, or appointed in writing by a

= to perform the duties of an officer of the Customs

rvice.

Sk ren at, Se

ee

PGR 20-45. RAEN

App. 25

Although Ker-Frisbie has been severely criticized,*

and the Second Circuit, in an extreme case of outrageous

governmental conduct of physical and emotional brutality

and indignity,’’ has held, on the basis of post-1960 due

(m) The term “customs waters” means, in the case of a foreign

vessel subject to a treaty or other arrangement between a foreign

government and the United States enabling or permitting the

authorities of the United States to board, examine, search, seize,

or otherwise to enforce upon such vessel upon the high seas the

laws of the United States, the waters within such distance of the

coast of the United States as the said authorities are or may be

so enabled or permitted by such treaty or arrangement and, in

the case of every other vessel, the waters within four leagues of

the coast of the United States.

(n) The term “hovering vessel” means any vessel which is

found or kept off the coast of the United States within or without

the customs waters, if, from the history, conduct, character. or

location of the vessel, it is reasonable to believe that such vessel is

being used or may be used to introduce or promote or facilitate

the introduction or attempted introduction of merchandise into the

United States in violation of the laws respecting the revenue.

4See Dickinson, Jurisdiction Following Seizure or Arrest in Viola-

tion of International Law, 28 Am.J.Int.L. 231 (1934); Allen, Due

Process and State Criminal Procedures: Another Look. 48 Nw.L. Rev.

16, 27-28 (1948): Scott. Criminal Jurisdiction of a State Over a De-

fendant Based Upon Presence Secured By Force or Fraud, 37 Minn.L.

Rev. 91 (1953): Fairman. Ker v. Illinois Revisited. 47 Am.J.Int.L.

678 (1953) for earlier articles: and Pitlar. “The Fruit of the Poisonous

Tree”: Revisited and Shepardized, 56 Calif.L.Rev. 579, 600 (1968)

which followed significant post-Frisbie Fourteenth Amendment due

process decisions in the area of arrest, search and seizure, see. e.

Mapp v. Ohio, 1961. 367 U.S. 643. 81 S.Ct. 1684, 6 L.Ed.2d 1081:

Beck v. Ohio, 1961, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 which

some assert raise doubts as to the current vitality of the Ker-Frisbie

concept. See Judge Friendly’s comments in United States v. Edmons.

2 Cir.. 1970. 132 F.2d 577, 583. But see United States v. Cotten. 9

Cir.. 1973, 471 F.2d 744.

See also cases cited by Judge Mansfield in United States v. Tos-

canino, 2 Cir., 1971. 500 F.2d 267, 272-3.

SUnited States v. Toscanino, 2 Cir., 1974, 500 F.2d 267, en banc

rehearing denied (Mulligan & Timbers, JJ. dissenting). See United

States v. Herrera. 5 Cir., 1974, 501 F.2d 859, 860.

£-.

LSA REE EE REIS LP TL NR OE PERS LESLIE A A ES Om

LE

App. 26

process decisions, that Ker-Frisbie bends,** in such situa-

3¢Indeed, with the ink scarcely dry on Toscanino, in the unsuccess-

ful effort to have it reheard en banc, the Second Circuit in an

opinion by Chief Judge Kaufman, Lujan v. Gengler, 2 Cir., 1975, —

F.2d —, has limited Toscanino to outrageous situations.

In circumstances that show much more in the way of government

excesses or so-called high-handed treatment on the high seas, they

declined to extend Toscanino to these situations not involving degrad-

ing, egregious, outrageous and flagrant indignities to human per-

sonality.

The conduct found insufficient to warrant dismissal was described

by the Court:

Lujan, a licensed pilot, was hired in Argentina by one Duran

to fly him to Bolivia. Although Duran represented that he had

business to transact there with American interests in Bolivian

mines, he in fact had been hired by American agents to lure

Lujan to Bolivia. When Lujan landed in Bolivia on October 26,

1973, he was promptly taken into custody by Bolivian police who

were not acting at the direction of their own superiors or govern-

ment, but as paid agents of the United States. Lujan was not

permitted to communicate with the Argentine embassy, an attor-

ney, or any member of his family.

On the following day the Bolivian police . . . took Lujan . .

to La Paz, where he was held until November 1, 1973. . . . Boli-

vian police, acting together with American agents, brought Lujan

to the airport and placed him on a plane bound for New York .. .

at Kennedy Airport Lujan was formally arrested by federal agents.

Lujan, supra, F.2d at . The Court described Toscanino

as presenting “conduct of the most outrageous and reprehensible

kind...” Id.

Yet in recognizing that Ker and Frisbie no longer provided a

carte blanche to government agents bringing defendants from

abroad to the United States [by the use of torture, brutality and

similar outrageous conduct, we did not intend to suggest that any

irregularity in the circumstances of a defendant’s arrival in the

jurisdiction would vitiate the proceedings of the criminal court.

In holding that Ker and Frisbie must yield to the extent they were

inconsistent with the Supreme Court’s more recent pronounce-

ments, we scarcely could have meant to eviscerate the Ker-Frisbie

rule, which the Supreme Court has never felt impelled to disavow. ]

Id. at . However, the Court continued by stating that the out-

rageous treatment inflicted on Toscanino “brought [this] case within

the Rochin [Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96

L.Ed. 183] principle and demanded * * * a remedy.” Id., —— F.2d

at

ati tet erase ' ati a ali mee PALE ERE PR « te ata PL OUR OL LER LEE” SPELL SSH BDESI ELE SAG ID td

ae oe are ae

App. 27

tions the Supreme Court has not receded from Ker’ or

Frisbie, ** and neither has this Court.*’

But the same cannot be said of Lujan. It requires little argu-

ment to show that the government conduct of which he complains

pales by comparison with that alleged by Toscanino . . . which

sinks to a violation of due process. * * *

Id.

37In Ker v. Illinois, 1886, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed.

421, a United States citizen was forcibly removed from Peru for trial

in an Illinois state court. The Court held that a defendant who has been

convicted in a state court may not challenge the indictment or a

conviction thereunder on the ground that he was improperly brought

within the Court’s jurisdiction in violation of his Fourteenth Amend-

ment right to due process of law. The Court further held that since

the treaty of extradition between the United States and Peru did not

confer a right to asylum on the defendant, he could not object to the

fact that the state of Illinois had acquired custody over him through

self-help rather than legal process.

Eleven years later in Ex Parte Johnson, 1897, 167 U.S. 120, 17

S.Ct. 735, 42 L.Ed. 103, the Court clearly indicated that the Ker

doctrine was equally applicable to defendants in federal criminal

proceedings.

38In Frisbie v. Collins, 1952, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed.

541, the Supreme Court reconsidered and unanimously reaffirmed the

continuing viability of the Ker doctrine. Rejecting the claim that abduc-

tion and transfer of the defendant was itself a federal kidnapping, the

Court, through Mr. Justice Black, declared:

This Court has never departed from the rule announced in Ker

v. Illinois, 119 U.S. 436, 444, 7 S.Ct. 225, 229, 30 L.Ed. 421, that the

power of a court to try a person for crime is not impaired by the fact

that he had been brought within the court’s jurisdiction by reason of

a “forcible abduction.” No persuasive reasons are now presented to

justify overruling this line of cases. They rest on the sound basis that

due process of law is satisfied when one present in court is convicted

of crime after having been fairly apprized of the charges against him

and after a fair trial in accordance with constitutional procedural

safeguards. There is nothing in the Constitution that requires a court

to permit a guilty person rightfully convicted to escape justice because

he was brought to trial against his will. 3!2 U.S. at 522, 72 S.Ct.

at 511.

39In our recent case of United States v. Vicars, 5 Cir.. 1972, 167

F.2d 452. we stated this summary 7 the law.

(Footnote continued on next page)

OPE ILM PE Pate LL SAIL EL TRRNG BL NOEN H 0 TELE M LOSES: TROIS DED ISS SOIL

App. 28

[9] Indeed, just recently, we rejected the Second

Circuit’s approach in Toscanino* and held Ker-Frisbie

applicable to a non-resident alien claiming unlawful ab-

duction from Peru:

[Herrera] also urges a loss of jurisdiction by rea-

son of the failure of the United States to follow the

orderly processes of extradition under the treaty be-

tween the United States and Peru. aa

It is settled by both Supreme Court decisions and

decisions of this court that these contentions are with-

(Footnote continued jrom previous page)

Even if, as Gonzales claims, he was illegally arrested in the

Panama Canal Zone and brought to the United States, this is not

grounds for requiring that the trial court release and discharge him

without trial. E. g., Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct.

509, 511, 96 L.Ed. 541, 515 (1952) (“This Court has never departed

from the rule . . . that the power of a court to try a person for crime

is not impaired by the fact that he has been brought within the

court’s jurisdiction by reason of a ‘forcible abduction.’ ”’): Stamphill

v. Johnston, 136 F.2d 291, 292 (9th Cir.) cert. denied, 320 U.S. 766,

6! S.Ct. 70. 88 L.Ed. 457 (1943) (“The personal presence of a de-

fendant before a District Court gives that court complete jurisdiction

over him, regardless of how his presence was secured, whether by

premature arrest . . . wrongful seizure beyond the territorial jurisdic-

tion of the court . . . false arrest . . . [or extradition arising out of

an offense other than the one for which he is being tried]”); United

States ex rel. Voigt v. Toombs. 67 F.2d 7!4 (5th Cir. 1933), petition

for cert. dismissed, 291 U.S. 686, 54 S.Ct. 442, 78 L.Ed. 1072 (1934)

(“It is well settled in the courts of the United States that jurisdiction

once acquired in a criminal case is not impaired by the manner in

which the accused is brought before the court.”’).

467 F.2d at 455-6.

Note: The bracketed portion is of doubtful validity in view of United

States v. Rauscher. 1886. 119 U.S. 407, 7 S.Ct. 234, 30 L.Ed. 425.

See also United States v. Caramian, 5 Cir.. 1972, 468 F.2d 1370.

*°United States v. Herrera. 5 Cir., 1971, 504 F.2d 859, and 507

F.2d 143 (1975), where we reincarnate United States v. Farias, 5 Cir.,

1974, 488 F.2d 852 (en banc) and Amaya v. United States Bd. of

Parole, 5 Cir.. 1973, 486 F.2d 910.

App. 29

out merit. Ker v. Illinois, 1886, 119 U.S. 436, 444,

7 S.Ct. 225, 30 L.Ed. 421; Frisbie v. Collins, 1952,

342 U.S. 519, 522, 72 S.Ct. 509, 96 L.Ed. 541; United

States v. Caramian, 5 Cir., 1972, 468 F.2d 1370,

1371; United States v. Vicars, 5 Cir., 1972, 467 F.2d

452, 455; United States v. Cotten, 9 Cir., 1973, 471

F.2d 744, 748; Hobson v. Crouse, 10 Cir., 1964, 332

F.2d 561.

United States v. Herrera, 5 Cir., 1974, 504 F.2d 859, 860.

Bound as we are by Herrera, we think that as the Second

Circuit recognized in Lujan, mere errors or the exertion

of action by agents beyond the strict territorial limit does

not make the conduct so outrageous as to invoke these

more drastic remedies.

Despite strenuous efforts by appellants to distinguish

Ker and its progeny, we are convinced that they are con-

trolling as to all appellants.

[10] On its own facts, Ker precludes an attack on

the District Court’s jurisdiction over the American citizens

Towne and Parks*' since Ker himself was an American

citizen forcibly abducted out of another foreign sovereign

state and returned to the United States to stand trial.

Ker-Frisbie and Nonresident Aliens

[11] The Jamaican appellants Winter and Davis

argue that Ker-Frisbie does not preclude nonresident aliens

illegally seized outside of the territory of the United States

+1We give separate consideration to Parks’ challenge to the Court’s

jurisdiction over his person. See notes 16 and 47, infra, and accom-

panving text.

eer, _

App. 30

and forcibly brought before a federal District Court from

challenging its jurisdiction over their persons despite the

fact that American citizens similarly seized would quite

clearly be precluded from successfully raising such a

defense. We have not discovered any prececent in which

the Courts have directly confronted this issue.*?

In Ford, the defendants were seized aboard a British

vessel 25 miles from the United States coast and brought

into the United States where they were indicted and con-

victed for conspiring to violate the prohibition laws. The

United States and Britain had entered into a treaty which

permitted the United States to board any British vessel

within an hour’s sailing distance of the United States coast

and make searches and arrests necessary to the enforce-

ment of the prohibition laws. Since the S/S Quadro was

clearly beyond an hour’s sailing distance of the coast, the

Court was willing to conclude that the boarding officers

had exceeded their jurisdiction to arrest.

With that background it considered the challenge to

the trial court’s jurisdiction over the persons of the de-

fendants, but ultimately sustained the convictions.*

*2F requently, the opinions which have found Ker controlling fail

to state whether the defendants alleging illegal arrest or abduction are

American citizens or aliens. See, e. g., United States v. Vicars, supra;

United States v. Caramian, supra.

These appellants place great weight on three prohibition-era cases

to distinguish Ker. Ford v. United States, 1927, 273 U.S. 593, 47

S.Ct. 531, 71 L.Ed. 793; United States v. Schouweiler, S.D.Cal.. 1927,

19 F.2d 387; United States v. Ferris, N.D.Cal.. 1927, 19 F.2d 925.

+3The Court stated:

The Solicitor General answers, on the authority of Ker v. Illinois,

119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421, that an illegal seizure

would not have ousted the jurisdiction of the court to try the

defendants. But the Ker case does not apply here. It related to a

IE ae ee Pp ETO Oe Ey, q e SERS LPI GLP LLIN PURINE LOISGO ESN FY

App. 31

In Schouweiler and Ferris, the defendants were

arrested aboard Panamanian vessels well beyond an hour’s

sailing distance of the coast and brought into the United

States where they were indicted for conspiring to violate

the prohibition laws. The United States and Panama had

entered into a treaty similar to the one involved in Ford.

Faced with a timely plea to the Court’s jurisdiction over

the persons of the defendants, the District Courts for the

Northern and Southern Districts of California dismissed

the indictment in reliance on Ford.

Despite certain factual similarities, we do not be-

lieve that Ford will suffice to rescue the alien defendants

from the preclusive grasp of Ker-Frisbie. Ford, Ferris and

Schouweiler all emphasized that the arrests in issue were

in clear violation of a treaty limiting the right of the

United States to board the vessels of another sovereign

trial in a state court, and this court found that the illegal seizure

of the defendant therein violated neither the federal Constitution,

nor a federal law, nor a treaty of the United States, and so that

the validity of their trial after alleged seizure wes not a matter of

federal cognizance. Here a treaty of the United States is directly

involved, and the question is quite different.

But there is a reason why this assignment of error cannot

prevail. The issue whether the ship was seized within the pre-

scribed limit did not affect the question of the defendants’ guilt

or innocence. It only affected the right of the court to hold their

persons for trial. It was necessarily preliminary to that trial.

The proper way of raising the issue of fact of the place of seizure

was by a plea to the jurisdiction. A plea to the jurisdiction must

precede the plea of not guilty. Such a plea was not filed. The

effect of the failure to file it was to waive the question of the

jurisdiction of the persons of defendants.

273 U.S. at 605-06. 47 S.Ct. at 535 71 L.Ed. at 799.

App. 32

nation. Our case by contrast involves neither the violation

of a treaty* nor a reproach to the vessels of another power.

We doubt that Ford is at all applicable in the absence

of these operative factors.

In addition, the continuing viability of Ford may

well have been significantly undermined even on its own

facts, by Frisbie. Ford’s treatment of the challenge to

jurisdiction of the person based on a violation of treaty

appears consonant with Ker’s reluctance to find a violation

of due process “unless there was some positive provision

of the constitution or of the laws of this country violated

in bringing him into court. . ..” 119 U.S. at 440, 7 S.Ct.

at 227, 30 L.Ed. at 423 ‘emphasis added). In Ford the

violation of the treaty constituted such a violation of a

positive provision of federal law.

In Frisbie, however, the Court was willing to assume

a violation of the federal Kidnapping Act—clearly a posi-

tive provision of federal law—and yet still find the Ker

doctrine dispositive.

“The articles of the treaty referred to, note 30, supra, speak in

terms of the right of the adjacent power to control and regulate

limited governmental activities within the area specified. They do not

deal with that more sensitive matter of one sovereign obtaining from

another permission to board and if necessary arrest foreign nationals

on a vessel of such foreign nation, an act which, in the absence of a

treaty, would be a violation of freedom of the High Seas. (See, for

example, how scrupulous the United States was to distinguish between

control and exploitation of the seabed and its resources from any claim

of comparable exclusivity over the International High Seas above the

seabed. Outer Continental Shelf Lands Act, § 3, 43 U.S.C.A. § 1332.

Rodrigue v. Aetna Casualty & Surety Co., 1969, 395 U.S. 352, 89

S.Ct. 1835, 23 L.Ed.2d 360, 1969 AMC 1082.)

PML ARTs SNS Se “ Fei) SR Ne ke al ek ee ee

te

App. 33

[12] We conclude that Ker-Frisbie applies to the

nonresident aliens as well.*

The Separate Claims Of Parks

Due to the individual circumstances of Parks’ arrest*

he undertakes to assert different attacks from those of his

unsuccessful co-appellants.

[13] Parks through his very knowledgeable counsel

attempts to lay out a course in the tortuous waters be-

tween Scylla and Charybdis. Recognizing that on the

porthand, as an American having been arrested within

the territorial limits of the United States, he cannot

challenge the District Court’s jurisdiction over his person

based on the illegal arrest of others on the high seas,*’

*SWith the Ford treaty theory rejected, we can perceive no rational

basis for drawing any distinction between citizens and nonresident

aliens. Under the Equal Protection Clause, the Courts have held that

in certain contexts resident aliens are entitled to the same rights as

American citizens. See, e. g., Takahashi v. Fish and Game Commission,

1948, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (state statute deny-

ing fishing license to resident aliens unconstitutional); Graham v.

Richardson, 1971, 403 U.S. 365, 91 S.Ct. 1818, 29 L.Ed.2d 534 (state

statute denying assistance benefits to resident alien unconstitutional) ;

In re Griffiths, 1973, 113 U.S. 717, 93 S.Ct. 2851, 37 L.Ed.2d 910

(state statute denying resident alien opportunity to take bar exam

unconstitutional). We are unaware of any context, however, in which

an alien has greater rights under law in our Courts than an American

citizen. Indeed, such a circumstance might in itself raise serious

questions of equal protection.

*6Parks was arrested in Miami harbor after he was discovered

hiding aboard M/V Adventurer III following the arrests of the other

appellants aboard M/V Big L.

47In view of Ker, Frisbie and Vicars, Parks’ counsel was careful

not to phrase his theory in terms of a challenge to the Court’s jurisdic-

tion over the person.

PEP EN SON OPE aA PRES EP CNP EY PENNY BIE TIM MLN ELEM LINE BN IN vis

” a

App. 34

and, on the starboard hand under Sepe* the validity of a

search and seizure cannot ordinarily escalate to a reserved

“jurisdictional” issue, he tries by dead reckoning to steer

a middle course. Divining it as best we can, Parks argues

that the Coast Guard illegally boarded and searched the

vessel, discovered the contraband and then made the

arrests, and consequently the arrest of co-appellants aboard

M’V Big L, as well as Parks’ own arrest aboard M/V

Advanturer III in Miami, were fruits of an illegal search.*’

+8United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044 (en banc).

While Sepe permits a defendant to enter a guilty or nolo plea and

yet preserve a challenge to the Court’s jurisdiction (whether personal

or subject matter) on appeal, a defendant who has pleaded under

such a court approved reservation may not renew a motion to suppress

on appeal simply by invoking the magic words “jurisdictional-defect”

and phrasing his argument as a challenge to the arresting officer's

jurisdiction to search or arrest.

Both court and counsel were aware of the limitations on a Sepe

nolo plea. Parks’ attorney was fully aware of Sepe and its implica-

tions since he had been counsel both at trial and on appeal in Sepe

as well as in United States v. Caraway, 5 Cir., 1973, (en banc), 483

F.2d 215 (dismissed as moot) vacating 474 F.2d 25, the two cases in

this Circuit in which the issue had then arisen.

The District Court was well acquainted with the panel decision in

Sepe (subsequently affirmed en banc) and time and again warned

counsel that it simply would not accept a plea reserving the right to

appeal defects other than challenges to the Court’s jurisdiction. At one

point during the hearing on the pleas, the Court stated emphatically:

With respect to the motion to dismiss, and the motion for the

suppression of the evidence, to the extent that the jurisdiction of

the Court is involved in the latter motion, I will accept a plea of

no contest and it may be sent up to the Court of Appeals on the

stipulated facts and the sentences that are imposed, but with

respect to any other defense that is ordinarly waived by a plea of

guilty, I will not accept a plea of no contest.

*°Parks challenges the search and seizure on the grounds that the

Coast Guard (i) acting as an arm of the BNDD or Customs Authority

(pursuant to 14 U.S.C.A. 89(b)(1) and (2)) exceeded its authority

in that the search was not a legitimate border search (see notes 32

and 33. supra, and accompanying text); (ii) the vessel searched was

beyond the jurisdiction of the Coast Guard and within the exclusive

jurisdiction of another sovereign state (see note 31, supra, and accom-

panying text).

Pied ieee “ PATIL HY CREME AA PE ARTUR BRO NIMC Ie CY TE ROLY MAN A ENFORCE MI MT Ronan

App. 35

[14] But this theory founders on either the left or

right and if—and it is a big if—the Odyssean (after

Odysseus) course is a “jurisdictional” one then it stands

on the merits. In the circumstances of this case—which

like Mizell, supra, proves again the wisdom of Sepe’s

limitations—we decline to transplant the roots of the

poisonous tree to the 460 fathom deep seabed westward of

the Great Bahama Bank.* As to the so-called internation-

ally illegal boarding and “search” of M/V Big L, Parks,

on the kind of record Sepe permits, cannot begin to show

that his identity or connection with the enterprise was

due to the operation “High Seas.” He had already been

tagged by the owner of Adventurer III, whose reliability

was sufficiently established by his continuous contact with

the agents spelling out exact times, places, loading, de-

parture and planned rendezvous. To connect Parks with

the enterprise did not depend on what was found aboard

M/V Big L.

At the least, for a Sepe plea-showing this confirmed

the existence of the plan—facts which, independent of the

half ton of contraband, could have been proved by the

presence of the “planted” crew members and the close

surveillance of hovering agents aloft and aboard C/G

Dauntless—so close in fact, as to have precipitated all

these International law problems with the admittedly High

Seas but a tenth of a mile off.

50See C&GS chart 1112 in evidence.

App. 36

Need For Repleading

[15] As each of the “jurisdictional” issues asserted

by each appellant have been found wanting, we have given

full faith to the District Court’s agreement on the nolo

plea. No one has been misled. The bargain has been kept

on all sides. The conditions of the provisional pleas have

been fully respected. There is therefore no basis for re-

manding for repleading.

Affirmed.